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2010 Supreme(Kar) 1057
High Court of Karnataka
S. ABDUL NAZEER
Bangalore Urban and Rural, District Co-operative Milk, Producers’ Societies Union Ltd. (Bamul)
Versus
Sri H. Hanumanthappa, Bangalore & Another
Writ Petition No. 8768 of 2010 (CS-RES)
Decided on : 06-12-2010
For the Petitioner:Abhinav Ramanand, M/s. Kumar & Kumar, Advocates. For the Respondent: M.C. Nagashree, HCGP.
Comparative Citation: 2011 (2) KantLJ 333
Headnote:KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 - Section 119 & Karnataka Co-operative Societies Rules, 1960, Rule 34(4)(b): [S.Abdul Nazeer,J] Condonation of delay - Application under Rule 34 for setting aside ex parte award - Held, Sections 4, 5, 12 and 14 of the Limitation Act are made applicable to filing of any appeal or application for revision under Karnataka Co-operative Societies Act, 1959. The said provisions are not made applicable to an application filed under Rule 31(4)(b), for setting aside an ex parte award. Proviso to Rule 31(4)(b) states that no application for setting aside an ex parte decision or award shall lie unless made within 30 days from date of such decision or award date of knowledge of such decision or award. Though under Rule 31(4)(b) ex parte decisions may be set aside on sufficient causes for non-attendance being shown, proviso is intended to limit the period within which ex parte decisions or awards may be set aside. Since provisions of limitation law are not provided for filing an application under Rule 34(1)(b) having regard to Section 119 of Act, it cannot be said that an application for setting aside an ex parte decision or award can be filed beyond period of thirty days from date of such decision or award or from date of knowledge of such decision or award having been made.
Even if there is a delay in filing the appeal, the provisions of Limitation Act are made applicable for seeking condonation of delay in filing appeal. When Act does not provide for application of Section 5 of Limitation Act to application for setting aside ex parte award question of entertaining a miscellaneous case filed beyond 30 days form date of decisions or award or from date of knowledge of such decision or award having been made by condoning the delay in filing, is not justified.
KARNATAKA CO-OPERATIVE SOCIETIES RULES, 1960 - Rule 34(1)(b): [S.Abdul Nazeer,J]-Setting aside of ex-parte award - Application filed after a lapse of two months along with an application filed under Section 5 of the Limitation Act to condone the delay of two months - Competency of the Joint Registrar to entertain the Miscellaneous Application which was filed beyond the period of 30 days from date of knowledge of ex-parte award - Applicability of Section 5 of the Limitation Act to the proceedings -Held, Section 4,5,12 and 14 of the Limitation Act are made applicable to the filing of any appeal or application for revision under the Act. The said provisions are not made applicable to an application filed under Rule 31(4)(b), for setting aside an ex-parte award. Though under Rule 31(4)(b) ex-parte decisions may be set aside in sufficient causes for non-attendance being shown, the proviso is intended to limit the period within which the ex-parte decisions or awards may be set aside. Further, Sections 4,5,12 & 14 of the Limitation Act are made applicable only to the appeal or application for revision under the Act. In other words, the said provisions are not made applicable for seeking condonation of delay in filing an application for setting aside an ex-parte decision or award.-A summary procedure is provided for disposal of the disputes under Section 71 of the Act and the relevant Rules made for said purpose. The legislature in its wisdom has limited the application of the provisions of the Limitation Act for filling of an appeal or application for revision under the Act. The award is appealable under Section 105 of the Act. Even if there is a delay in filing the appeal, the provisions of the Limitation Act are made applicable for seeking condonation of delay in filing the appeal. The right of appeal is a substantive right. When the Act does not provide for application of Section 5 of the Limitation Act, question of entertaining a miscellaneous case filed beyond 30 days from the date of the decision or award or from the date of knowledge of such decision or award having been made by condoning the delay in filing is not justified.
1. In this case, the short question falls for determination is ‘whether the Joint Registrar is competent to entertain a miscellaneous application under Rule 34(1)(b) of the Karnataka Co-operative Societies Rules, 1960 (for short ‘the Rules’) to set aside an ex-parte decision or award after thirty (30) days from the date of such decision or award was made when such decision or award had been duly served in the dispute or in other cases after thirty (30) days from the date of knowledge of such decision or award having been made?.’
2. A few facts necessary for disposal of the writ petition are as under:
The petitioner had filed a dispute in case No.JRB.MD.12/2001-2002 against the 1st respondent before the second respondent under Section 70 of the Karnataka Cooperative Societies Act, 1959 (for short ‘the Act’) for recovery of a sum of Rs.7,89,820/-. The second respondent passed an award dated 21.2.2003 directing the first respondent to pay a sum of Rs.7,89,820/- with interest at 18% per annum from 22.6.1990 till the date of payment. The first respondent did not pay the said amount in terms of the award. Therefore, the petitioner filed an execution case No.758/2008 on the file of the Additional City Civil Judge, Bangalore, for execution of the award. Notice in the case was served on the first respondent on 28.11.2008. On 16.2.2009, the first respondent filed a miscellaneous case under Rule 31(4)(b) to set aside the award dated 21.2.2003. He has also filed an application along with the miscellaneous case under Section 5 of the Indian Limitation Act, seeking condonation of delay in filing the miscellaneous case. The petitioner has opposed the application by filing objections. The second respondent has allowed the application by his order at Annexure ‘J’ Dated 1.6.2009. The petitioner filed a revision petition No.61/2009 under Section 107 of the Act before the Karnataka Appellate Tribunal, Bangalore, challenging the said order. The Appellate Tribunal has rejected the application by its order at Annexure ‘K’ dated 19.2.2010. The petitioner has called in question the validity of the said order in this case.
3. Learned Counsel for the petitioner submits that the first respondent was placed ex-parte in the award proceedings before the second respondent. The award was passed on 21.2.2003. In the Execution Case No.758/2008, the petitioner was served with a notice on 28.11.2008. Thus, on the said date, the first respondent had the knowledge of the award at Annexure ‘C’. The petitioner ought to have filed the miscellaneous case under Rule 31(4)(b) within 30 days from the date of the knowledge of the award. The miscellaneous case was filed on 16.2.2009. Thus, there is a delay of about two months in filing the miscellaneous case. The second respondents should not have entertained the miscellaneous case as it was filed beyond 30 days from the date of the knowledge of the award. It is further argued that Sections 4, 5, 12 and 14 of the Indian Limitation Act are applicable to the filing of any appeal or application for revision under the Act having regard to Section 119 of the Act. Section 5 of the Limitation Act is not made applicable for seeking condonation of delay in filing the miscellaneous case under Rule 31(4)(b). The second respondent is not right in allowing the application seeking condonation of delay in filing the miscellaneous case. Therefore, the Appellate Tribunal ought to have set aside the order of the second respondent.
4. Though the first respondent is served, he has remained un-represented. Learned High Court Government Pleader appearing for the second respondent submits that under Section 119 of the Act, Sections 4, 5, 12 and 14 of the Limitation Act are made applicable to the filing of appeal or application for revision under the Act. There is no bar for condoning the delay in filing a miscellaneous case under Rule 31(4)(b) of the Rules in accordance with Section 5 of the Limitation Act.
5. Before dealing with t
